from the free-'em-up dept

In the wake of last week's horrible ruling saying that APIs are covered by copyright, we've pointed out that the negative impact on innovation could be massive, creating chilling effects concerning all sorts of development. Thankfully, at least some companies are being fairly proactive in distancing themselves from the crazy idea that APIs can be covered by copyright. Automattic, the makers of WordPress, just amended their API Terms of Use to make it explicit that they don't believe APIs are copyrightable subject matter, and they will not claim copyright on them:

[Update: 5.12.2014] One more thing – APIs like ours enable the kind of collaboration that makes the Internet great. We don’t think APIs are copyrightable subject matter, and don’t claim copyright in our APIs.

This is good to see, and hopefully we'll see other companies with APIs doing the same thing. It will help separate out companies that want to encourage open innovation -- from those who want to lock things down. In the end, perhaps this whole thing will even backfire on Oracle, as it makes people that much less interested in working on technologies from a company looking to lock up innovation.

from the urls-we-dig-up dept

There's little point waxing philosophical about the human brain — it's a near-miraculous mystery, and we all know it. Every study, at best, makes mere baby steps towards a fuller understanding of what's going on inside our skulls — and these three, focusing on how the brain develops and changes over time, are no different... and no less fascinating:

from the net-neutrality? dept

So, yesterday we wrote about the cable industry lobbying group NCTA blatantly misleading with statistics about how much broadband investment is coming from the cable side. The story it was pushing was that investment in broadband has continued to go up and up (and thus, "changing" the rules would somehow lead to less investment).

Beyond changing the number of years before showing the totals, this chart is exceptionally misleading in that it is showing cumulative investment, rather than the actual rate of investment. Matthew Yglesias called NCTA out on this, leading NCTA to more or less admit Yglesias was right, though denying that he was. Still, NCTA finally released some actual year-by-year numbers. Of course, as people quickly noted, those year-by-year numbers seemed to support Yglesias' point. Furthermore, they weren't adjusted for inflation.

From there, the story of cable continually increasing investment looks... very different. There was that big initial build-out of broadband in the late 90s/early 2000s, but then expenditures dropped, and other than minor ups and downs it's been pretty flat. In fact, since 2007, the trend is pretty clearly downward on investment. Yes, there's a tiny bump in the last two years, but that's at best flat spending, not any real increase.

Now, it's possible to claim -- as some cable industry supporters have been -- that because of greater efficiency and better technology, spending the same amount is fine because they get more value out of fewer dollars. But, if that's the case, then that's the argument the cable industry should be making, rather than the wholly misleading argument that investment in infrastructure has continued to rise over the last decade. It's quite clear from the chart that this is simply not true.

from the um...are-you-for-real? dept

Last September, we noted that the FISA Court had finally released a heavily redacted version of its attempt to justify the NSA's use of Section 215 of the PATRIOT Act to sweep up phone records on every phone call. It's noteworthy that this was the first time that the FISC had ever bothered to actually detail why it believed the program was legal, despite approving such bulk collection orders for years. In that ruling last fall (which had been written last July), one of the things that FISC Judge Claire Eagan stated was:

To date, no holder of records who has received an Order to produce bulk telephony metadata has challenged the legality of such an Order. Indeed, no recipient of any Section 215 Order has challenged the legality of such an Order, despite the explicit statutory mechanism for doing so.

We found that to be fairly disappointing that no company had stepped up to challenge these orders. In fact, we noted just last month that an unnamed phone company was the first to challenge the records -- but it turns out that's not true. In fact, it turns out that what Eagan claimed in her ruling isn't true either.

In some newly declassified documents from the Director of National Intelligence, it's revealed that Sprint challenged the order, and basically forced the government to reveal the actual legal basis for the request. Sprint isn't named in the declassified legal filing, but people have confirmed that that's who it was.

The actual filing is a "Motion for Amended Secondary Order" from the DOJ, in which it's pretty clear that Sprint basically asked the government "are you fucking serious? you want us to hand over everything?" The motion from the DOJ is basically asking the FISA Court to repeat its original order with a legalese version of "yes, we're serious." As Julian Sanchez points out, it seems pretty clear that Sprint basically went back to the government and said could you repeat that, so that we actually know this is for real?

The Washington Post further claims that Sprint had a legal challenge drafted and ready to go, but was eventually persuaded by the DOJ and/or FISC not to go that far. Still, the idea that no one had questioned the legality of these orders doesn't appear to be accurate. Yes, we could have hoped that Sprint would have gone to greater lengths, but as we were just discussing this morning, the government puts immense pressure (often in the form of lies) on anyone who dares to challenge its ability to spy on everyone.

from the because-terrorism dept

Last year, we noted that US Solicitor General Donald Verrilli had lied to the Supreme Court in Amnesty International's lawsuit about warrantless wiretapping. If you don't recall, Amnesty International had sued about the program, but the US government successfully got the case tossed by arguing that Amnesty International had no proof that their communications were tapped, and thus they had no standing to sue. The Supreme Court appeared troubled by the fact that no one could sue unless they somehow knew for a fact they were being spied upon, but eventually sided with the government, in large part because of one of Verrilli's false statements.

Specifically, he claimed that others would have standing to sue, because if the government used the information obtained via such a warrantless wiretap (under Section 702 of the FISA Amendments Act) it would have to inform those who were being charged with a crime because of that information. It was only much later, when Dianne Feinstein was bragging about how effective Section 702 was in stopping "terrorists" (during a Senate debate on renewing the FISA Amendments Act) that it became clear that Verrilli had made false claims to the Supreme Court. Because in her bragging, she mentioned some specific cases that she said made use of Section 702 -- and the lawyers for the defendants in those cases quickly realized that they were never informed about that.

To his credit, Verrilli himself not only claimed that he was misled by national security lawyers, but ordered that the practice be changed, and some defendants have since been informed.

Of course, to some, that has been too little too late. Back in November, we noted that Senators Mark Udall, Ron Wyden and Martin Heinrich pointed out a second false statement that Verrilli made to the Supreme Court in the same case. Specifically, the DOJ and Verrilli told the court that the NSA would have to have "targeted the communications" of someone that Amnesty was talking to, and that was "highly speculative" for Amnesty to assume that was true. But, as the Senators pointed out, it was later declassified that the 702 program was not just about collecting the communications to or from "targeted" individuals, but also any communications about them.

While this may seem like a small deal, it's actually a very big deal, because it could likely mean that the communications of many Americans were collected without any sort of warrant. It turns out that in December, the DOJ responded, but that response has just been released. In it, the DOJ insists that lying to the Supreme Court concerning the fact that Section 702 allowed for the collection of purely domestic communications without a warrant if they were merely "about" a target (rather than to or from that target) was really no big deal at all and not relevant to the case.

Your letter raises questions regarding the now-declassified "about" collections that have
resulted in the acquisition of some wholly domestic communications as a result of Section 702
surveillance and whether the government's representations in Clapper v. Amnesty International
were incomplete or misleading for failing to refer to such collections. The government acted
appropriately by not addressing the "about" collections in Clapper v. Amnesty International
because the existence of this type of collection was classified throughout the period during which
the case was briefed, argued, and decided, and because those collections did not bear upon on the
legal issues in the case. At all times, the Department and the Office of the Solicitor General have
a duty of candor in our representations to the Supreme Court, and it is a duty we take extremely
seriously. The Department and the Office of the Solicitor General also have a duty to respect the
classified status of information, and that is also a duty we take extremely seriously. In litigation,
we must take pains to avoid discussing matters that are unnecessary to the resolution of matters
before the Court when those matters might disclose classified information or undermine national
security, while ensuring that the Court has all of the information relevant to deciding the issues
before it.

The Department's briefing and argument in Clapper v. Amnesty International fully
respected both of these duties. The Department described the surveillance authorized by Section
702 (and the provision's targeting and minimization requirements) accurately, and we made no
statements that could be reasonably understood as denying the existence of "about" collection.
Moreover, the possibility of then-classified, incidental collection of domestic communications,
while of undoubted importance and interest to the public, was not material to the legal issue
before the Supreme Court.

More importantly, they note that, contrary to the DOJ's claims, it's pretty clear that this very much mattered as a part of the Supreme Court's reasoning:

The Justice Department's reply also states that the "about" collection "did not bear upon the legal issues in this case." But in fact these misleading statements about the limits of section 702 surveillance appear to have informed the Supreme Court's analysis. In writing for the majority, Justice Alito echoed your statements to the Court by stating that the "respondents' theory necessarily rests on their assertion that the Government will target other individuals -- namely their foreign contacts." This statement, like your statements, appears to foreclose the possibility of "about" colleciton.

We recognize that the inclusion of this misleading statement in the Court's analysis does
not prove that the Court would have ruled differently if it had been given a fuller set of
facts. Indeed, it is entirely possible that the Court would have ruled in exactly the same
way. But while the Justice Department may claim that the Amnesty plaintiffs' arguments
would have been "equally speculative" if they had referenced the "about" collection, that
should be a determination for the courts, and not the Justice Department, to make.

While this seems like a technical issue, it's a huge deal. Effectively, the DOJ and Solicitor General Verrilli -- whether on purpose or not -- misled the Supreme Court on two key aspects of the 702 collection program, and it appears that the Supreme Court relied, in part, on both of those misleading statements in coming to its decision. The fact that the DOJ still appears rather unconcerned about how its misrepresentations may have impacted the courts is immensely troubling, not just because it may have resulted in an illegal and unconstitutional surveillance program continuing for many extra years, but also because it highlights the mendacity of the DOJ in trying to win cases at all costs, rather than actually trying to make sure the law is applied appropriately.

As the new letter from Udall and Wyden concludes:

As we have noted elsewhere, we are concerned that the executive branch's decade-long
reliance on a secret body of surveillance law has given rise to a culture of
misinformation, and led senior officials to repeatedly make misleading statements to the
public, Congress and the courts about domestic surveillance. The way to end this culture
of misinformation and restore the public trust is to acknowledge and correct inaccurate
statements when they are made, and not seek to ignore or justify them.

It's unfortunate that it appears that so few in Congress are up in arms over this. The executive branch purposely misleading the judicial branch over constitutional issues is a very big deal, and most in Congress don't seem to want to have anything to do with it.

from the a-broken-system dept

We've written a few times about the unfortunate decision by the W3C to adopt DRM in HTML5 in an effort to keep Hollywood happy. While Tim Berners-Lee and others at W3C have tried to defend their reasons for doing so, they're all based on the faulty premise that somehow the internet needs Hollywood more than Hollywood needs the internet. The reverse is true, but Hollywood has convinced too many people of its own importance to the internet. Because of that -- along with the agreed-upon fact that today's plugin/extension system is a complete disaster from technological and security standpoints -- the W3C, pressured by a bunch of big companies, agreed to put DRM into the next generation of HTML (and don't buy their argument that it's not actually DRM -- the only purpose that Encrypted Media Extensions (EME) serves is to enable DRM).

Today there's a lot of discussion because Mozilla, makers of the popular (and open source) Firefox browser, have posted two separate blog posts about how they feel forced to adopt this DRM even though they hate basically everything about it. Mozilla's argument is not crazy. They're worried that by not adopting these standards, while all other browsers do, people will just shift to those other browsers. And beyond just losing market share, Mozilla has a point in noting that the way other browsers implement EME will be less secure than the way that Mozilla is doing it.

We have designed an implementation of the W3C EME specification that satisfies the requirements of the content industry while attempting to give users as much control and transparency as possible. Due to the architecture of the W3C EME specification we are forced to utilize a proprietary closed-source CDM as well. Mozilla selected Adobe to supply this CDM for Firefox because Adobe has contracts with major content providers that will allow Firefox to play restricted content via the Adobe CDM.

Firefox does not load this module directly. Instead, we wrap it into an open-source sandbox. In our implementation, the CDM will have no access to the user's hard drive or the network. Instead, the sandbox will provide the CDM only with communication mechanism with Firefox for receiving encrypted data and for displaying the results.

Traditionally, to implement node-locking DRM systems collect identifiable information about the user's device and will refuse to play back the content if the content or the CDM are moved to a different device.

By contrast, in Firefox the sandbox prohibits the CDM from fingerprinting the user's device. Instead, the CDM asks the sandbox to supply a per-device unique identifier. This sandbox-generated unique identifier allows the CDM to bind content to a single device as the content industry insists on, but it does so without revealing additional information about the user or the user's device. In addition, we vary this unique identifier per site (each site is presented a different device identifier) to make it more difficult to track users across sites with this identifier.

Mozilla is also making it opt-in -- so that everyone will have the choice to choose whether or not to activate the DRM implementation. Also, kudos to Mozilla for not taking the W3C path of pretending that EME isn't DRM. Mozilla is quite upfront that this is DRM and that they're uncomfortable with this. As Andreas Gal says:

The new version of DRM uses the acronyms “EME” and “CDM.” At Mozilla we think this new implementation contains the same deep flaws as the old system. It doesn’t strike the correct balance between protecting individual people and protecting digital content. The content providers require that a key part of the system be closed source, something that goes against Mozilla’s fundamental approach.

Unfortunately, it appears that even though this is the case, Mozilla still believes that the internet needs Hollywood's locked up content more than Hollywood needs to adapt to the internet. That's too bad. Cory Doctorow has a very detailed discussion of why he thinks Mozilla made a mistake, while acknowledging all of the reasons why they did what they did. More importantly, he lists a number of additional things that Mozilla should do to improve the situation. I'll summarize those four things, because I agree wholeheartedly:

Protect security researchers: Thanks to the anti-circumvention provision of the DMCA, any security research into Adobe's DRM may be a form of infringement. As Cory notes, Mozilla should demand that Adobe issue a covenant not to sue security researchers or developers who find vulnerabilities.

Educate users: Teach everyone (including Hollywood, but mainly the public) why DRM is dangerous and harms security and privacy online. Personally, I'd add that Mozilla could also teach people why DRM is simply not necessary.

Research and publish the case for DRM: This goes back to the question of who really needs it. Hollywood thinks they do, but I don't think that's really true. As Cory says, Mozilla should look at the actual data to see if there truly is a use case for DRM.

Formulate and articulate a DRM policy: Basically don't make these kinds of decisions ad hoc -- but have a clear policy on how and when decisions like this get made.

For years, the music industry insisted it needed DRM, and folks like Apple catered to them -- and that actually just helped Apple have more power over the music industry. Finally, the music industry shed DRM and it had almost no impact. Today, the book industry has the same issue, demanding DRM... and basically handing market power to Amazon in providing that DRM. It's amazing that Hollywood still insists it needs DRM. It does not. Unfortunately, it by agreeing to implement DRM here, it means it will take much longer for Hollywood to learn this lesson.

from the fumble dept

We've spent some time here at Techdirt trying to warn you about Dan Snyder, the owner of the Washington Redskins NFL team and likely replicant. Between his battling to keep a racist team name, attempts to murder satire in the press, using intellectual property law to disappear his team's name from the blogosphere, and generally acting like an entitled brat, you may have thought that he and his band of merry lawyers couldn't sink much lower.

Dan Snyder is just the worst, and his worstness reared its head once more yesterday when he sent a cease and desist letter to former Redskins great LaVar Arrington, demanding that Arrington stop calling himself a Redskins great. Word of the cease and desist first came from Arrington himself, who went on a bit of a Twitter rant yesterday.

While the reporting of the details here is all coming from Arrington's side, the issue appears to be slightly different than reported above. While there may have been a request to stop using the Redskin name in Arrington's flyer for his football camp, the chief issue appears to surround a picture of Arrington that was also on the flyer, which itself seems to have been taken at an NFL game in which Arrington is wearing his former Redskins uniform.

Arguing over that nuance is a bit beside the point, however, because the point is: what the hell is the matter with these people? Have we really entered an era in which using a picture of oneself and describing yourself as having played for a team, which is a factual statement, are now actionable items? And even if they are, what the hell is the team getting out of pissing off a former player who is well-loved by their own fanbase?

That said, since Snyder's folks haven't really demonstrated much of an understanding of the Streisand Effect in the past, it's no surprise to see that Arrington is using the threat as a promotional tool.

@LaVarArrington:

Hey @Redskins instead of being so petty about things you should've had your entire defense sign up for the camp #truth

from the a-look-at-the-history dept

The cable and phone companies are telling people in DC that the Internet has benefited from "no" net neutrality rules. They claim, since there were no rules for a decade, we don't need them now. They've got the story exactly backwards: we have had active FCC interventions on net neutrality. That's one reason we have had a neutral Internet until now. Indeed, since 2004, we have had enforcement actions, policy statements, merger conditions, spectrum conditions, and a rule. The first time we have had the FCC announce that it would not ensure neutrality but would instead authorize fast lanes ... was Chairman Wheeler's comments earlier this year.

While very often imperfect, the FCC has done much to ensure an open internet. Carriers have not historically engaged in rampant discrimination partly due to the threat of FCC action. In 2004, the FCC's Chairman issued a speech about the "Four Freedoms" online, which promised to keep the Internet an open platform. In 2005, the FCC punished Madison River, a small telephone company that was blocking Vonage, an application that powered online phone calls competing with Madison River's own service. In 2005, the FCC adopted an Internet Policy Statement and pledged to respond to any violations of the statement with swift action. In 2008, after it was discovered that Comcast, the largest ISP in the nation, was interfering with some of the internet's most popular technologies -- a set of five peer-to-peer (P2P) technologies -- the FCC enjoined Comcast in a bipartisan decision. Much of the cable industry was engaging in such actions, so this wasn't a small exception. In 2010, the FCC adopted the Open Internet Order that was only recently struck down.

Additionally, in the years since 2005, the FCC has conditioned spectrum assignments and mergers on net neutrality rules. The largest three broadband providers have been (or remain) subject to net neutrality for many years. AT&T accepted two-year net neutrality conditions in its merger with BellSouth, and SBC accepted a two-year condition in its merger with AT&T. Verizon accepted a similar condition in its merger with MCI. Verizon purchased a 22MHz band of spectrum (the C block) in the FCC's 2008 700MHz auction for $4.7 billion dollars, and did so subject to open internet conditions modeled on the Internet Policy Statement. Comcast has been subject to network neutrality rules since its merger with NBC in 2011, and the merger condition extends for seven years. Both Verizon and Comcast's conditions still apply today. Moreover, Congress imposed contractual obligations on internet networks built with stimulus funds -- nondiscrimination and interconnection obligations that, at a minimum, adhered to the internet Policy Statement, among other obligations.

In light of these merger obligations, license conditions, FCC adjudications and rule-making, stimulus conditions, and consistent threats of FCC action, startups have enjoyed a generally neutral network that is conducive to, and necessary for, innovation. These actions provided some certainty that startups would not be arbitrarily blocked, subject to technical or economic discrimination, or forced to pay carriers so that the carriers' consumers can access all the innovation online.

Following the Verizon v. FCC decision, and under the Chairman's proposal, that will likely change, in ways that harm entrepreneurship and the public interest.

The past decade of tech innovation may not have been possible in an environment where the carriers could discriminate technically and could set and charge exorbitant and discriminatory prices for running internet applications. Without the FCC, established tech players could have paid for preferences, sharing their revenues with carriers in order to receive better service (or exclusive deals) and to crush new competitors and disruptive innovators. Venture investors would have moved their money elsewhere, away from tech startups who would be unable to compete with incumbents. Would-be entrepreneurs would have taken jobs at established companies or started companies in other nations. The FCC played an important role. The Chairman and this FCC shouldn't break that.

from the because-shut-up dept

Another day, another story of someone with skin way too thin not comprehending satire and dashing off an angry legal threat. In this case, it's worse than usual because the bogus legal threat is coming from the US government. Popehat has the full story of how some of the legal geniuses at the Department of Health and Human Services have sent a bogus cease-and-desist letter over a pair of obviously satirical posts on the site AddictionMyth.com. While we've long been skeptical of the medical profession's desire to label all sorts of things "addictions," that particular site takes it to extreme levels, arguing that there's nothing that's addictive, and all talk of addictions (including drug and alcohol addictions) are just a big scam "perpetrated by law enforcement, rehab groups and the entertainment industry." I think that's nuts, but they certainly have their right to say so.

They also have the right to post a satirical conversation with a so-called "addiction guru." As Ken at Popehat points out, there's no way to read this without realizing it's satire:

AM: According to your research, blackouts occur not just in middle age alcoholics, but in young college students who may not have built up much tolerance for alcohol. Their drinking often ended up in unprotected sex, vandalism, and fights, of which they had no memory until cued by a friend. What was their response to their memory? Regret? Horror? Delight? Glee? A little of each?

AW: I wasn’t the author of the research. But I would say a little of each, at least based on my own experience. I suspect they remembered more than they wanted to admit. Though one time I got really drunk at a party and my friend told me that I was talking to his sister in French, and I had absolutely no recollection of that. It was surprising to me as a brain scientist because alcohol has been shown to suppress activation of the inferior frontal region (Broca’s area also known as the ‘language center’). I probably shouldn’t have been able to talk at all, let alone French, given my BAC. But what was really weird was that I don’t even know French!

Do you realize how psychotically insane that sounds? In my field we have a term for it: CRAY-CRAY!

Either way, this bogus cease-and-desist appears to have stirred up the attention of a lawyer at the real US Department of Health and Human Services (HHS), which apparently has some extra time on its hands now that Healthcare.gov's website is kinda, sorta working. Lawyer Dale Berkley sent a cease-and-desist in which he argues both that (1) the interview is clearly not true and (2) that it might be defamatory. You can't really have both of those things be true.

We recently became aware of two items that you posted on your website directed to two employees
of the National Institute on Alcohol Abuse and Alcoholism (“NIAAA”)--one which purports to be an
interview with NIAAA Project Manager Dr. Aaron White, and the other a letter from NIAAA Director
Dr. George Koob.

Of course Dr. White did not in fact participate in the interview and Dr. Koob did not write the letter
attributed to him.

We are concerned that, especially with respect to the mock interview, the public could be deceived
and misled into believing that Dr. White in fact contributed to the interview. Those items are
defamatory, and expose you to potential liability.

We therefore request that you either remove the articles from your website, or provide a
prominent disclaimer indicating that Dr. White and Dr. Koob did not participate in the interview or
write the letter.

When the target of satire complains that it is defamatory, the relevant question is whether the satire can reasonably be taken as a statement of fact about its subject. Dr. Berkley, by saying that "of course" the satirical articles do not reflect the actual words of the subjects, has just proclaimed that the satire he is complaining about cannot be taken as a statement of fact.

You paid taxes for that.

White goes into a more in-depth legal analysis of just how preposterously bogus the letter from HHS is, and questions if Berkley was even remotely aware of the law before sending the letter, or if any other lawyer at HHS bothered to look it over. In the meantime, we're wondering if HHS has any programs for helping with the tragically satire-impaired?

from the 2nd-(grade)-Amendment dept

It seems to me that if it takes a new law to force school policies to more closely resemble common sense, then there's definitely a problem with those policies. The question remains as to why this couldn't be changed at a school administration level. Zero tolerance weapons policies are somewhat mandatory, seeing as they're tied to school funding. But there's nothing in that stipulating that situations not involving actual weapons need to be handled in the most asinine fashion possible.

Since the story broke about the suspension of a 7-year-old student for biting his breakfast pastry (a Pop-Tart, for all intents and purposes) into a gun-like shape and making gun-like motions, legislation has been introduced twice to address this incredibly stupid problem.

The first bill was passed in Maryland, the state in which the dangerous Pop-Tart gun was first brandished. Florida is now the second state attempting to step up and reaffirm its schoolchildren's right to carry (and deploy) non-functioning, non-weapons that may or may not resemble actual weapons, depending on your level of paranoiac imagination and/or adherence to zero tolerance policies. Its unofficial name is the "Pop-Tart bill," and it aims to ensure that the Anne Arundel, MD school will never live down its brush with deadly pastries.

Here's the text that specifies exactly what administrators won't be allowed to portray as policy-violating weapons in the future.

Simulating a firearm or weapon while playing or wearing clothing or accessories that depict a firearm or weapon or express an opinion regarding a right guaranteed by the Second Amendment to the United States Constitution is not grounds for disciplinary action or referral to the criminal justice or juvenile justice system under this section or s. 1006.13. Simulating a firearm or weapon while playing includes, but is not limited to:

1. Brandishing a partially consumed pastry or other food item to simulate a firearm or weapon.

2. Possessing a toy firearm or weapon that is 2 inches or less in overall length.

This would seem to cover a majority of incidents covered here and elsewhere. It still gives the schools leeway to make dumb decisions if they feel "learning" has been "disrupted" enough, and it also allows them to implement school uniform policies if the thought of screenprinted guns wandering the campus is too terrible to contemplate.

But the boy at the center of that controversy is still caught in the zero tolerance web. The Washington Post reports that school officials in that case are saying the suspension was really about general disciplinary problems, despite the fact that the brief citation includes the word gun four times and the parents say administrators made no mention of other concerns at the time of the suspension:

At Tuesday’s hearing, school officials said the boy also had nibbled his pastry into a gun shape a day earlier. But his teacher, Jessica Fultz, testified that on that day he was more compliant when admonished. On the day he was suspended, she said, he was not responsive when she told him to stop.

The policies are not only bad, but they're enforced inconsistently. So, a kid who defiantly chews a Pop-Tart into a gun shape is treated as just as much of a problem as someone with an actual weapon in their possession. The school has yet to back down from its decision, proving it's still trying to portray itself as the real victim.

Oh, and it has a real problem with the media's inaccurate portrayal of this event.

Laurie Pritchard, Anne Arundel’s director of legal services, said that the object central to the case had been misportrayed, as well as the reason for the discipline.

“First of all, it wasn’t a Pop-Tart,” she said. “It was a breakfast pastry."

Well, that's what happens when you blow the budget on legal assistance rather than food. You can't afford name-brand goods. And shame on all of us for believing that the object cited the most in the suspension report was the actionable cause, rather than the barely-mentioned and overly vague "general disciplinary problems" the writeup couldn't even be bothered to enumerate.

from the three-big-lies dept

Last night, the first episode of Frontline's United States of Secrets aired, going deep into the history of "The Program," which is what the Bush (really Cheney) White House referred to the NSA program to spy on Americans based on incredibly shaky legal theories -- theories that were locked in a safe in Michael Hayden's office at the NSA, which almost no one was allowed to see. If you want additional background or summaries of the episode, Monday night's Fresh Air was great, including interviews with both the director of the program as well as Bill Binney and Kirk Wiebe -- two NSA whistleblowers (who we've mentioned before) who had their lives turned upside down due to totally bogus FBI raids, which were clearly a response to their whistleblowing activities. Another great summary comes from PRI's The World.

Either way, the thing that stands out to me is how the administration tried, desperately to stop anyone from revealing "The Program" with three big lies, which are discussed in all three of the links above. Here's the short summary of what happened any time anyone sought to raise issues about the legality of "The Program":

It's completely legal and has been judged as such (though don't ask why)

If you reveal it, hundreds of thousands of Americans may die in a future attack -- and the blood will be on your hands if you reveal and/or stop this program.

Of course, at this point, we now know that basically all three of those things are untrue. The "legality" was from a (still secret) memo from Cheney's lawyer David Addington that was kept almost totally secret. Some of the people who have seen it (including Jack Goldsmith at the OLC), apparently found that the legal reasoning was insanely weak, which may be part of the reason it was kept secret. It also notes, as has been discussed here in the past, that eventually the DOJ figured out a way to get the FISA Court's Colleen Kollar-Kotelly to issue a very questionable ruling effectively authorizing the program.

As for the "it's working," we've seen recently what a huge and incredible lie that was. Similarly, while the NSA and its defenders love to throw around the idea that if anyone reveals anything "blood will be on your hands," that threat is always issued when whistleblowing happens, and it's always a massive exaggeration.

Either way, those three big lies were effective in scaring people off from doing anything about the program -- including Bill Keller at the NY Times, who spiked James Risen's big story about the warrantless wiretapping (a part of the larger program) for over a year (well past the 2004 Presidential election). And, of course, since the program became known finally when Risen was getting ready to publish a book about it (and thus Keller felt he couldn't sit on the story any longer), those "hundreds of thousands of deaths" were (once again) proven to be nothing but bogus FUD.

Of course, in the past year, Ed Snowden has revealed many more details of The Program and what it later turned into, and thus provided even more evidence that the three claims were just ridiculous lies all along. And yet, for over a decade now, those three big lies have been at the heart of the NSA's program to spy on Americans.

from the not-helping,-you-are dept

While fan-made movie edits aren't particularly new, they don't often find themselves getting a ton of attention by the mainstream public. That changed a couple of years ago when Topher Grace, of That 70's Show fame, decided to try to learn film editing and produced a recut single film of the Star Wars trilogy (episodes 1, 2 and 3) that came out a decade or so ago. The result was a tighter, single film that decapitated a great deal of the nonsense Star Wars fans hated. Instead, it was a single movie that left in the real meat of the story, focusing on Anakin Skywalker's relationships and his fall from grace. In other words, it's what Star Wars films should be.

Only a few friends of Grace saw the recut film, because copyright got in the way, though it became the stuff of legend, with lots of people talking about it. Grace made it clear that he had no plans on putting his work up on the internet. So people were deprived of a recut, to some degree transformative work, despite how much the public wanted just such a thing.

A reimagining of the Star Wars prequel trilogy edited into a single compelling movie, based on the structure conceived by actor Topher Grace. As a critique of episodes 1-3, many large plot pieces have been removed or changed to strengthen the core relationship between Anakin Skywalker and Padmé Amidala. More than 100 video and audio edits heighten the main character's tragic fall from grace.

This appears to be an even more transformative attempt than Grace's, with scenes recut and reordered to portray an even deeper emotional storyline of the infamous Anakin Skywalker / Darth Vader. Some early comments on the edited films were quite positive. I can't provide you with my own review because, well, you've probably already guessed it.

UPDATE (6:58pm): And the video's now gone, presumably removed for copyright reasons.

And so, again, viewers are deprived the opportunity to see a recut, fan-made exhibition of their own Star Wars take due to the overprotective nature of copyright holders. It's a situation that makes little sense. You can't even really appreciate the recut film without seeing the originals, so that you have the context of what was done. While many will argue that the finished recut film was itself a better movie than the 3 original films, the star here is the editing work, not the film itself. That's the transformative art. I won't go so far as to say that copyright shouldn't even apply here, but there's no way it's serving its original purpose.

On top of that, forcing Jar Jar Binks down our throats by kneecapping a film that omits him/it/whatever is just mean.

from the the-politicization-of-copyright dept

The most important development in copyright policy in the 21st century has undoubtedly been the mass politicization of copyright. In the common telling, the 2012 US SOPA and European anti-ACTA protests are when this politicization became crystal clear, lessons for the entire world that citizens can shape copyright laws and treaties.

The SOPA and ACTA stories are important, both as sources of inspiration and as how-to lessons. Which is why it's a shame that another, earlier, anti-ACTA victory is in danger of being forgotten by activists.

As you might have read on Techdirt (and as I recount in greater detail in my just-published book), between 2010 and 2011, a dozen or so underfunded Mexican activists (with a key role played by artist and Techdirt contributor Geraldine Juárez) under the label of the Mexican Stop ACTA network and leveraging social media like Twitter, convinced the Mexican Senate unanimously to reject ACTA. Specifically, the Senate, which is responsible for ratifying international treaties, told the President they would not ratify ACTA if he signed it.

Since then, in July 2012, lame-duck President Felipe Calderón actually signed ACTA, but, almost two years later, it has yet to be submitted for ratification and it's unclear whether it would pass in any case. And of greater long-term importance, the Stop ACTA debate has user rights as a legitimate part of Mexican copyright discourse.

This already-impressive outcome becomes even more remarkable when you consider the context. In 2002, the Senate voted, with little debate and almost unanimously, to extend the copyright term to a world-leading life of the author plus 100 years, which was pretty indicative of the Senate's (and the government, generally) previous hands-off, maximalist approach to copyright.

The Stop ACTA network not only engineered the Senate's unanimous rejection of ACTA, but they did it in a country generally thought to have relatively weak political institutions, an underdeveloped civil society and relatively low broadband penetration rates, on an issue traditionally negotiated behind closed doors. Most remarkably, unlike SOPA and the European ACTA protests, they did it within the political system: the system worked. As Antonio Martínez, one of the Stop ACTA leaders, told the December 2013 Global Congress on Intellectual Property and the Public Interest, "Mexico did it first, and we did it better." He's right.

Given that Mexico's political, social and technological situation is more like other developing countries' than are those of Europe or the United States, it's worth considering how they pulled it off. Spanish speakers can check out Ciudadanos.mx: Twitter y el cambio politico en México, which includes a chapter by two of the main Stop ACTA participants, Juárez and Mart'nez. Based on interviews with many of the key players that I conducted for my book, three factors were particularly important.

The Stop ACTA activists understood and exploited the particularities of their political system, working with sympathetic, well-placed legislators. In particular, they worked with Senator Francisco Javier Castellón Fonseca, then chair of a key Senate committee, whom they knew from a previous battle over taxation of the Internet. Realizing that Mexican law requires that the Senate be kept informed of all economic-treaty negotiations, they exploited the secrecy surrounding the ACTA negotiations to convince even Senators from the President's party that they were being disrespected.

In terms of social media's political efficacy, broadband penetration rates are less important than politicians' views on the importance of social media. Legislators paid attention to Stop ACTA's Twitter presence because Barack Obama's successful 2008 presidential campaign had convinced them that social media are politically relevant.

They successfully framed the ACTA question in terms of its potential violation of constitutional guarantees, such as access to information, free expression, communication, and access to education and culture. Its potential negative effect on economic development also did not go unnoticed.

Crucially, this was a made-in-Mexico movement. There might be a transnational copyright movement, but actual activism is still local. Also, while social-media technologies can make it easier to mount successful political campaigns, it's unclear whether diffuse networks like Stop ACTA have long-term staying power in protracted policy debates.

Even with those caveats, there are many lessons here for anyone interested in understanding online social movements. It suggests how citizens can leverage social media and an understanding of their domestic political regimes to effect political change. It's disappointing that this historic achievement is in danger of falling into the memory hole, even among copyright and open-Internet activists. It would be a shame if that were to happen.

The policies of other TPP nations criticized by the 384-page USTR report include New Zealand's popular health programs to control medicine costs, an Australian law to prevent the offshoring of consumers' private health data, Japan's pricing system that reduces the cost of medical devices, Vietnam's post-crisis regulations requiring banks to hold adequate capital, Peru's policies favoring generic versions of expensive biologic medicines, Canada's patent standards requiring that a medicine's utility should be demonstrated to obtain monopoly patent rights, and Mexico's "sugary beverage tax" and "junk food tax."

None of those is a real trade "barrier", but rather a policy choice seeking to bring about certain results that presumably correspond to the wishes of the local electorate. The cultural aspects of these so-called "barriers" are even clearer in the case of Malaysia:

The report takes issue with Malaysia's "extremely high effective tariff rates" on alcohol and its strict licensing policy for the importation of pork -- strange "barriers" to highlight in a country where three out of every five people are Muslim. Malaysia's halal standards for meat have also been targeted as a "barrier" in a companion USTR report on Technical Barriers to Trade (published in 2013, the most recent edition available). USTR is concerned that Malaysia requires "slaughter plants to maintain dedicated halal production facilities and ensure segregated storage and transportation facilities for halal and non-halal products."

Again, it's quite evident neither of those has anything to do with "market distortions", and everything to do with the fact that Islam is an important cultural element of Malaysian society. It is only natural that its laws and regulations should reflect that. Similarly, the following is likely to be an expression of Japanese society itself, not some evil plan to shut out foreign companies:

The report critiques Japan's laws protecting the privacy of citizens' personal data, calling them "unnecessarily burdensome." The U.S. government, according to the report, "has urged the Japanese government to reexamine the provisions and application of the Privacy Act, so as to foster appropriate sharing of data..."

Presumably those laws were passed because the Japanese value their privacy, and specifically wish to limit the sharing of personal data. But the USTR seems to think it is reasonable to demand that Japanese society change its attitudes in order to make the laws less "burdensome" to US companies operating there. The Japanese section also contains the following:

The report calls for "timely and accurate disclosure" of key texts related to Japan's postal reform, and "public release of meeting agendas, meeting minutes, and other relevant documents." In contrast, leaks have revealed that the United States and other TPP countries have agreed to keep TPP texts classified until four years after the agreement enters into force or talks collapse.

The lack of transparency for TPP is no simple matter of hypocrisy: it is an assault on local democracy. That's because the TPP negotiations are not haggling over a few tariffs, they are imposing a wide range of economic and social norms for an entire region. Conducted in secret, without any meaningful input from the people who will be most affected, these new-style agreements undermine the usual legislative process. This shift is yet another reason why TPP, TTIP and TISA must be opened up to allow greater public participation and input. If they are not, they are likely to be perceived as something imposed from above, and lacking in legitimacy. That's precisely what happened with ACTA; it led to tens of thousands of people taking to the streets, and ultimately rejection by the European Parliament.